Exhibit 10(n)
GUARANTY
KNOW ALL MEN BY THESE PRESENTS THAT
WHEREAS:
1. The Xxxxxxxx Capital Company, a New York general
partnership, Xxxxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx, (referred to
collectively herein as "SELLER") having an office at 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, concurrently with the delivery of this instrument has entered
into an Agreement of Sale and Purchase of even date herewith, with York Avenue
Development, Inc. (referred to herein as "PURCHASER"), a New York corporation,
having an office at 0000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, affecting
premises known as and by the street number 0000 Xxxx Xxxxxx xx xxx Xxxxxxx xx
Xxxxxxxxx, Xxxx, Xxxxxx and State of New York, which aforesaid agreement is
hereby incorporated in this instrument by reference (the aforesaid agreement is
referred to herein as the "AGREEMENT" and the premises demised therein is
referred to herein as the "PREMISES"); and
2. The undersigned, Sotheby's Holdings, Inc., a Michigan
corporation (referred to herein as "GUARANTOR"), having an office at 0000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, is the indirect owner of all of the issued and
outstanding stock of Purchaser; and
3. Guarantor acknowledges that Seller would not enter into the
Agreement unless this Guaranty accompanied the execution and delivery of the
Agreement.
NOW, THEREFORE, in consideration of the execution and delivery
of the Agreement by Xxxxxx and Purchaser, and of other good and valuable
consideration, the receipt and sufficiency whereof is hereby acknowledged by
Guarantor;
FIRST: The undersigned Guarantor does hereby:
11 Covenant and agree with Seller that if Purchaser, its
successors or assigns, shall default at any time in the payment of the
Purchase Price or any part thereof or any other payments provided to be
paid by Purchaser in the Agreement (collectively, the "Amounts"), or in
the observance or performance of
any of the terms, covenants or conditions of the Agreement on
Purchaser's part to be observed or performed, and such defaults shall
not be cured before the expiration of any applicable grace period, then
Guarantor will, on not less than ten (10) days prior written notice,
well and truly observe and perform said terms, covenants and conditions
and pay to Seller the Amounts and any other charges payable by
Purchaser under the Agreement, or any arrears thereof that may remain
due to Seller, and all damages, including, but not limited to, any
damages payable pursuant to the Agreement that may arise in consequence
of Purchaser's insolvency or such default in the observance or
performance of any of said terms, covenants or conditions; and
12 Covenant and agree with Seller that Guarantor may, at
Seller's option, be joined in any action or proceeding commenced by
Seller against Purchaser in connection with or based upon the Agreement
or any term, covenant or condition thereof, and that recovery may be
had against Guarantor in such action or proceeding or in any
independent action or proceeding against Guarantor without Seller, or
its assigns, first asserting, prosecuting or exhausting any remedy or
claim against Purchaser, its successors or assigns; and
13 Covenant and agree with Seller that this Guaranty shall
remain and continue in full force and effect notwithstanding any
modifications or amendments of the Agreement; and
14 Covenant to indemnify and save Seller harmless of and from
all cost, liability, damage and expense including, but not limited to,
reasonable counsel fees, which may arise by reason of Purchaser's
default under the Agreement and not cured before the expiration of any
applicable grace period, or Purchaser's insolvency, or Guarantor's
default hereunder; and
15 Covenant and agree with Seller that this Guaranty shall not
be terminated, affected or impaired by reason of any action which
Seller may take or fail to take against Purchaser or by reason of any
waiver of, or failure to enforce, any of the rights or remedies
reserved to Seller in the Agreement, or otherwise, provided, however,
that Guarantor shall be entitled to the same defenses that may legally
be asserted by Purchaser; and
16 Waive notice of the acceptance of this Guaranty and of any
and all defaults by Purchaser in the payment of the Amounts, and of any
and all defaults by Purchaser in the observance or performance of any
of the terms, covenants or conditions of the Agreement on Purchaser's
part to be observed or performed, and of any and all notices or demands
which may be given by Seller to Purchaser, whether or not required to
be given to Purchaser under the terms of the Agreement; and
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17 Acknowledge that this Guaranty is a guarantee of payment
and not of collection in respect to any obligations which may accrue to
Seller from Purchaser under the provisions of the Agreement; and
18 Covenant to and agree with Seller that the validity
hereunder shall in no way be terminated, affected or otherwise impaired
by reason of any assignment or transfer of Purchaser's interest in the
Agreement; and
19 Covenant to and agree with Seller that no failure to
exercise and no delay in exercising, on the part of Seller, of any
right, power or privilege under this Guaranty or at law shall operate
as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege preclude any other or further exercise
thereof, or the exercise of any other power or right. The rights and
remedies provided in this Guaranty are cumulative and not exclusive of
any rights or remedies provided by law.
SECOND: The provisions of this Guaranty shall be binding upon
said Guarantor, its successors and assigns and shall inure to the benefit of
Seller, its successors and assigns, and shall not be deemed waived or modified
unless specifically set forth in writing, executed by Seller and delivered to
Guarantor.
THIRD: Xxxxxxxxx agrees that any bills, statements, notices,
demands, requests or other communications given or required to be given to
Guarantor under this Guaranty at Seller's election, shall be addressed to
Guarantor at the above address, by certified mail, return receipt optional.
FOURTH: The officer executing this Guaranty on behalf of the
undersigned Guarantor represents to Seller that said officer has been duly
authorized by the undersigned Guarantor to execute and deliver this Guaranty on
behalf of the undersigned Guarantor and that execution and delivery of this
Guaranty is a proper and authorized act of the undersigned Guarantor and does
not violate the Articles of Incorporation or the By-Laws of the undersigned
Guarantor or the Laws of the State of New York.
IN WITNESS WHEREOF, the undersigned Xxxxxxxxx has signed and
sealed this Guaranty this 9th day of September, 1999.
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Sotheby's Holdings, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxxx
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CERTIFICATE OF ACKNOWLEDGMENT
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the _____ day of _______________, in the year ___ before
me, the undersigned, a Notary Public in and said State, personally appeared
____________________________________, personally known to me or proved to me on
the basis of satisfactory evidence to be the individual(s) whose name(s) is
(are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity (ies), and that by
his/her/their signature (s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
Notary Public
